489 


~  Hi-x-^ 

SPEECH 


DELOS  LAKE,  ESQ., 


U.  S.  District  Attorney, 


TRIAL  OF  HOGG  AND  OTHERS 


BEFORE     A 


MILITARY  COMMISSION  AT  SAN  FRANCISCO, 


June,    1865. 


SAN    FRANCISCO: 

PRINTED    BY    TOWNE   AND    BACON. 
1865. 


x. 


v  -.'-»'     '  • 
SPEECH  OF  DELOS  LAKE,  ESQ. 


MR.  PRESIDENT  AND  GENTLEMEN  OF  THE  COMMISSION  : 

The  charge  and  specifications  against  the  prisoners,  which  you  are 
convened  to  try,  are  as  follows : 

"CHARGE. 
"  Violation  of  the  laws  and  usages  of  civilized  war. 

"  SPECIFICATION. 

"  In  this — that  they,  the  said  T.  E.  Hogg,  E.  A.  Swain,  J.  S.  Hiddle,  W.  L. 
Black,  T.  J.  Grady,  R.  B.  Lyon,  and  Joseph  Higgins,  being  commissioned,  en- 
listed, enrolled,  or  engaged  by  the  Government  of  the  so-called  Confederate  States, 
did,  on  or  about  the  tenth  day  of  November,  1864,  come  on  board  the  United 
States'  merchant-ship  Salvador,  then  lying  in  the  friendly  port  of  Panama,  New 
Granada,  in  the  guise  of  peaceful  passengers,  without  any  visible  mark  or  insignia, 
indicating  their  true  character  as  enemies ;  and  did  so  enter  on  board  of  said 
steamer,  secretly  armed  and  provided  with  manacles,  with  the  intention,  purpose, 
and  object  of  treacherously  rising  on  the  master,  crew,  and  unsuspecting  passen- 
gers of  said  steamer,  when  she  had  reached  the  high  seas,  and  of  capturing  her  and 
the  property  aboard,  and  of  converting  her  into  a  cruiser  to  prey  on  the  commerce 
of  the  citizens  of  the  United  States." 

The  evidence  establishes,  and  the  prisoners  do  not  in  their  de- 
fense seriously  controvert  the  truth  of,  the  matters  detailed  in  the 
specification ;  but,  it  is  claimed  that,  conceding  the  facts  to  be  fully 
proven  as  set  forth  in  the  specification,  the  principal  charge  of  a 
"  violation  of  the  laws  and  usages  of  civilized  war,"  is  not  sustained. 
In  other  words,  the  proposition  contended  for,  is  this : 

That,  in  the  existing  rebellion,  a  person  not  attached  to  any  mili- 
tary or  naval  command,  may  go  abroad,  far  from  the  theater  of 
hostilities,  into  a  foreign  country,  and  at  a  foreign  seaport,  may, 
treacherously,  in  the  guise  of  a  peaceful  passenger,  traveling  on 
pretense  of  a  legitimate,  peaceful  mission,  introduce  himself  on 
board  a  merchant-ship  of  the  United  States ;  and  while  maintain- 


ing  this  false  character  of  such  peaceful  passenger,  may  suddenly 
rise  upon  and  slay  the  master,  crew,  and  passengers,  and  destroy 
the  ship ;  and  that  such  acts,  if  done  in  the  name  and  by  direction 
of  the  so-called  Confederate  Government,  are  acts  of  honorable 
warfare,  and  in  accordance  with  the  laws  and  usages  of  civilized  war. 

That  there  were  in  this  enterprise  more  than  one  person ;  that 
their  purpose  was,  after  the  capture  of  the  Salvador ',  to  convert 
her  into  a  privateer,  and,  under  a  rebel  flag,  to  prey  on  American 
commerce  ;  and  that  their  purpose  was  defeated — are  matters  that 
in  no  way  afiect  the  proposition. 

In  testing  the  soundness  of  the  prisoners'  argument,  we  may  as- 
sume the  enterprise  to  capture  the  Salvador  to  have  been  success- 
fully carried  out,  in  accordance  with  the  instructions  of  Mr.  Mallory, 
styling  himself  the  Secretary  of  the  Confederate  Navy  ;  and  in  the 
mode  and  manner  of  accomplishing  the  capture,  we  may  suppose 
what  in  the  ordinary  course  of  events  would  have  occurred. 

The  master,  crew,  and  passengers  of  the  Salvador  would  have 
made  a  manful  and  courageous  resistance,  meeting  force  with  force. 
Victory  and  the  capture  of  the  vessel  would  be  accomplished  only 
by  the  slaughter  of  the  master,  crew,  and  passengers,  if  necessary 
— since  the  instructions  of  Mr.  Mallory  are  to  "  effect  a  capture 
without  fail." 

The  proposition  contended  for  is  a  bold  and  startling  one,  and 
coming  from  these  prisoners  through  respectable  counsel,  is  well 
calculated  to  arrest  attention. 

Because,  if  it  be  maintainable,  then  it  is  lawful  for  the  rebel 
commanders  to  send  individuals,  in  numbers,  great  or  small,  away 
from  the  field  of  rebel  military  operations  throughout  our  peaceful 
sea-ports  and  towns,  with  directions  to  rob  banks,  burn  towns,  and 
steal  ships  ;  and,  in  fine,  to  commit  any  act  of  atrocity  conceivable, 
and  a  compliance  with  such  instructions  may  be  defended  as  hon- 
orable warfare. 

Hence,  Beale,  recently  executed  in  New  York  for  practices  sim- 
ilar to  those  charged  on  these  prisoners,  had  but  to  exhibit  his  in- 
structions from  the  rebel  Government  to  justify  himself;  and  Ken- 
nedy, the  emissary  sent  to  apply  the  torch  to  the  City  of  New  York, 
had  but  to  unfurl  jthe  rebel  flag  amidst  the  flames,  to  secure  the 
treatment  due  to  a  prisoner  of  war,  captured  in  honorable  warfare. 


Happily  such  doctrine  finds  no  sanction  in  the  laws  of  war.     The 
military  code  is  subject  to  no  such  reproach. 

But,  preliminary  to  discussing  the  nature  and  character  of  the 
acts  of  the  prisoners  as  acts  of  war,  it  is  proper  to  dispose  of  the 
objections  made  in  their  argument.  First,  that  no  overt  acts  of  hos- 
tility were  committed,  and  hence  no  offense  was  committed ;  and, 
second,  that  if  any  offense  was  committed,  it  was  against  the  munic- 
ipal laws  of  New  Grenada. 

1.  Under  the  first  objection  the  question  is,  were  the  prisoners 
engaged  in  levying  war  against  the  United  States  ? 

This  question  is  readily  answered — indeed,  in  one  part  of  their 
defense  the  prisoners  expressly  admit  it.  They  say,  "  we  are  sailors 
of  the  navy  of  the  Confederate  States.  We  are  commissioned  offi- 
cers of  a  Government  at  war  against  yours.  We  acted  under  in- 
structions of  our  chief  in  command." 

And  the  leader,  Hogg,  says  :  "  For  his  comrades  who  have  stood 
by  him  in  fealty,  during  seven  months  of  imprisonment,  he  pleads 
for  them  the  same  acts  of  extenuation  which  he  asks  for  himself. 
He  acted  under  the  commission  and  instructions  of  the  Confederate 
Secretary  of  the  Navy,  and  they  have  acted  under  him." 

Irrespective,  however,  of  the  prisoners'  admissions,  the  acts 
proved  are  clearly  acts  of  war. 

In  ex  parte  Collman  and  Startwout,  (4  Cranch,  76)  the  whole 
subject  of  what  constitutes  a  levying  of  war,  was  thoroughly  exam- 
ined and  expounded,  and  it  was  held,  that  to  constitute  a  levying  of 
war,  there  must  be  an  assemblage  of  persons  for  the  effecting,  by- 
force,  a  treasonable  purpose.  And  that,  when  a  war  is  levied,  all 
those  who  perform  any  part,  however  minute  or  however  remote 
from  the  scene  of  action,  and  who  are  actually  leagued  in  the  gen- 
eral conspiracy,  are  traitors. 

On  the  trial  of  the  case  known  as  the  "  Chapman  case,"  tried 
before  the  Circuit  Court  of  the  United  States  for  this  Circuit,  their 
Honors,  Judges  Field  and  Hoffman,  decided,  that  holding  a  letter 
of  marque  from  the  rebels,  and  under  it  taking  any  steps  to  fit  out 
a  vessel,  though  the  vessel  had  not  attempted  to  sail,  was  a  leagu- 
ing with  the  rebellion,  and  constituted  treason. 

To  apply  the  law  thus  stated  to  the  present  case,  the  rebels  are 
levying  war  against  the  Government.  The  prisoners  are  leagued 


6 

and  acting  with  these  rebels  in  arms,  and  receive  and  obey  instruc- 
tions from  the  leaders,  as  to  the  mode  and  manner  of  committing 
hostilities  and  inflicting  injury  on  the  enemy.  They,  hence,  though 
remote  from  the  general  scene  of  action,  were  engaged  in  levying 
war,  and  are  traitors. 

These  acts,  as  before  remarked,  are  clearly  set  forth  in  the  spec- 
ification, and  are  not  controverted ;  and  they  are  unquestionably 
acts  of  war,  and  perpetrated,  against  the  citizens  and  against  the 
commerce  of  the  United  States. 

2.  As  to  the  objection,  that  if  any  offense  was  committed,  it  was 
against  the  municipal  laws  of  New  Granada,  it  is  a  sufficient  answer 
to  say,  that  no  municipal  law  of  New  Granada  was  violated.  The 
prisoners  were  not  enemies  to  or  leaguered  with  enemies  of,  nor 
perpetrating  any  act  of  hostility  against  that  Government.  That 
the  acts  constitute  an  offense  at  all,  is  owing  to  the  preexisting  fact 
of  war,  and  that  the  perpetrators  were  engaged  in  that  war,  and 
that,  in  the  prosecution  of  that  war,  they  have  committed  acts  in 
violation  of  the  usages  of  civilized  war. 

The  offense,  therefore,  is  against  the  United  States,  or  no  offense 
has  been  committed. 

The  prisoners  further  contend  that,  the  acts  constituting  the  of- 
fense were  committed  within  the  territorial  jurisdiction  of  New 
Granada, -and  hence,  cannot  constitute  a  crime  against  the  United 
States. 

They  urge,  that  the  bay  of  Panama  "  is  an  inlet  from  the  Pacific 
Ocean,  more  than  one  hundred  miles  in  length,  and  that  the  port  of 
Panama,  where  the  Salvador  rode  at  her  anchor,  is  more  than  one 
hundred  miles  from  the  high  seas." 

In  this  the  accused  are  as  badly  advised  in  their  geography  as  in 
their  law. 

The  Bay  of  Panama  is  not  an  inlet  from  the  Pacific  Ocean.  It 
is  more  properly  a  gulf.  It  is  the  open  seas ;  and  the  anchorage 
ground  for  vessels  at  the  port  of  Panama  is  an  open  roadstead. 

It  is  no  more  within  the  exclusive  jurisdiction  of  the  State  whose 
shores  are  washed  by  its  waters,  than  are  the  gulfs  of  Mexico,  Nic- 
aragua, or  of  the  Bay  of  Biscay,  within  the  jurisdiction  of  the 
States  to  which  they  are  adjacent. 

It  is  said  by  writers  on  international  law,  that  maritime  territory 


7 

of  a  State  extends  to  bays  and  adjacent  parts  of  seas  inclosed  by 
headlands  belonging  to  the  same  State ;  but,  in  order  to  constitute 
such  bodies  of  water  a  portion  of  the  adjacent  territory,  they  must 
be  so  narrow,  or  so  nearly  inclosed  by  headlands,  as  to  admit  of 
being  defended  from  shore  to  shore,  or  to  be  commanded  by  cannon 
shot  from  the  opposite  headlands.  (Wheaton's  International  Law, 
p.  342.) 

The  distance  from  Point  Mala,  the  western  headland  of  the  Gulf 
of  Panama,  to  the  eastern  shore,  is  one  hundred  miles  and  upward ; 
and  on  the  eastern  coast  there  is  no  well-defined  point  of  land  to 
mark  the  entrance  to  the  gulf. 

No  cannon  has  yet  been  invented  of  sufficient  caliber  to  maintain 
jurisdiction  over  the  ocean  within  these  points,  and  no  canon  of  in- 
ternational law  has  heretofore  been  invoked  on  which  to  rest  a  claim 
to  such  a  jurisdiction. 

But  conceding  that  the  Bay  of  Panama  is  within  the  jurisdiction 
of  the  Central  American  States  ;  and  conceding,  also  (which  is 
not  however  admitted),  that  the  accused  were  arrested  within  the 
waters  of  the  bay,  no  such  consequences  would  result  as  is  claimed 
for  the  defense. 

These  waters  are  nevertheless  the  higji  seas. 

The  term  "  high  seas  "  ds  defined  to  be  waters  where  the  tide 
ebbs  and  flows,  without  the  boundaries  of  low-water  mark,  and  any 
ship  or  vessel  navigating  the  high  seas  carries  with  it  the  political 
and  even  territorial  jurisdiction  of  the  nation  to  whom  it  belongs. 

This  is  familiar  law,  to  be  found  in  all  elementary  works  which 
treat  of  the  subject,  and  is  illustrated  and  applied  in  a  vast  number 
of  adjudged  cases. 

In  United  States  vs.  William  Ross,  1  Gallison,  p.  624,  the  pris- 
oner was  indicted  for  being  present,  aiding,  and  abetting  in  the 
murder  of  a  man  on  board  the  American  schooner  Pocahontas  on 
the  high  seas  near  the  Cape  de  Verde  Islands. 

It  appeared  on  the  trial  that  the  schooner  lay  at  anchor  in  an 
open  roadsted  or  bay  near  the  Island  of  St.  Jago,  one  of  the  Cape 
de  Verde  Islands,  and  about  half  a  mile  from  the  shore  and  about 
a  mile  from  the  town  of  Pragal. 

About  midnight  the  prisoner  and  nine  other  Portuguese  convicts, 
came  on  board  armed  with  muskets,  cutlasses,  etc.,  took  possession 


8 

forcibly  of  the  vessel,  wounded  two  persons  on  deck,  knocked  down 
the  master  and  stabbed  a  colored  man  so  that  he  died  within  half 
an  hour. 

The  ruffians  then  cut  the  cables,  hoisted  the  sails,  and  put  out 
for  sea,  intending  to  proceed  to  South  America. 

It  did  not  appear  precisely  where  the  vessel  was  when  the  death 
took  place ;  but  she  was  adrift,  and  the  sails  hoisted,  and  from  two 
to  six  miles  from  the  land.  The  seizing  of  the  vessel  was  proved 
to  have  been  by  a  pre-concert,  and  with  a  determination  to  acconr 
plish  the  enterprise  be  the  consequences  ever  so  fatal — or  to  use 
the  equally  expressive  language  of  Mr.  Mallory,  "  to  effect  the 
capture  without  fail." 

It  was  objected  that  the  Court  had  no  jurisdiction  over  the  offense, 
because  it  was  committed  in  a  roadstead  or  bay  within  the  jurisdic- 
tion of  a  foreign  country  and  not  on  the  high  seas. 

Judge  Story  in  his  charge  to  the  jury,  says : 

"  The  first  question  to  be  decided  is,  whether  the  Court  has 
jurisdiction  over  the  offense,  as  proved  in  the  evidence  ;  or  in  other 
words,  was  the  offense  committed  on  the  high  seas,  within  the  true 
intent  and  meaning  of  the  Act  of  30th  of  April,  1790,  Ch.  9,  Sec. 
8  ?  From  the  language  of  the  Act,  I  am  of  opinion  that  the  words 
'  high  seas,'  mean  any  waters  on  the  sea-coast  which  are  without 
the  boundaries  of  low-water  mark  ;  although  such  waters  may  be  in 
a  roadstead  or  bay  within  the  jurisdictional  limits  of  a  foreign  gov- 
ernment. Such  is  the  meaning  attached  to  the  phrase  by  the  com- 
mon law,  and  supported  by  the  authority  of  the  admiralty,  perhaps 
to  a  more  enlarged  extent.  * 

If,  therefore,  the  jury  believe  the  evidence,  that  the  prisoner  with 
his  associates,  did  conspire  to  seize  the  schooner  and  run  away  with 
her  against  the  will  of  her  master  and  crew,  and  meant  in  the  pros- 
ecution of  such  conspiracy,  if  necessary,  to  kill  whoever  should 
oppose  them  in  executing  their  project ;  that  the  prisoner  was  the 
chieftain  and  actually  present  on  board,  aiding  and  assisting  in 
accomplishing  the  project  by  all  the  means  in  his  power,  and  one  of 
the  associates  did  on  that  occasion,  kill  the  unhappy  passenger  in 
aid  of  the  general  design,  I  hold,  that  the  homicide  so  perpetrated 
was  murder,  and  that  the  prisoner  and  all  his  associates  then  pres- 
ent were  principals  in  guilt." 


9 

Halleck  (p.  162)  says :  "  That  beyond  its  territorial  limits,  a 
State  may  exercise  jurisdiction  for  special  purposes — as  over  its  own 
public  and  private  vessels  on  the  high  seas,  and  its  public,  and  to  a 
certain  extent,  its  private  vessels  in  foreign  ports." 

And  at  page  172,  the  same  author  says :  "  The  rule  of  law  and 
the  comity  and  practice  of  nations  allow  a  merchant  vessel  of  one 
State  coming  into  an  open  port  of  another,  to  bring  with  her  and  to 
keep  over  her,  to  a  very  considerable  extent,  the  jurisdiction  and 
authority  of  the  laws  of  her  own  country ;  excluding  to  this  extent, 
by  consequence,  the  jurisdiction  of  the  local  law.  The  jurisdiction 
of  a  nation  over  its  vessels  while  lying  in  the  port  of  another,  is 
wholly  exclusive.  * 

Such  vessel  is  for  the  general  purposes  of  government  and  regulat- 
ing the  rights,  duties,  and  obligations  of  those  on  board,  to  be 
considered  as  a  part  of  the  territory  of  the  nation  to  which  she 
belongs." 

But  we  insist  still  further,  that  it  is  wholly  immaterial  whether 
the  offense  was  committed  on  the  open  sea  or  while  the  vessel  was 
at  anchor  in  the  port  of  Panama,  or  even  on  shore.  The  offenders 
are  in  either  case  answerable  before  the  tribunals  of  their  own 
country. 

"A  State  may  punish  offenses  committed  by  its  own  citizens  or 
subjects,  wherever  committed."  Halleck,  p.  173. 

In  pursuance  of  this  right,  Congress  has  provided  for  the  punish- 
ment of  various  offenses  committed  by  American  citizens  abroad — 
among  others,  that  of  corresponding  with  a  foreign  government 
without  being  duly  authorized  by  the  United  States. 

The  accused  are  citizens  of  the  United  States  in  rebellion  against 
the  United  States,  and  no  matter  where  they  commit  acts  of  hos- 
tility as  rebels,  against  the  citizens  or  commerce  of  the  United 
States,  they  are  answerable  to  the  United  States. 

In  discussing  this  case,  the  defense  have  confounded  two  ques- 
tions, which  have  not  necessarily  any  connection,  namely :  the 
place  where  the  offense  was  committed,  and  that  where  the  arrest 
was  made.  The  term  "  arrest,"  as  employed  by  Captain  Davenport 
and  the  Admiral,  applies  to  the  act  of  taking  the  prisoners  from 
the  Salvador  and  placing  them  on  board  the  war  steamer  Lan- 
caster ;  that  they  had  previously  been  restrained  of  their  liberty  to 


10 

an  extent  constituting  a  technical  arrest  may  be  conceded,  but  that 
was  a  matter  affecting  the  internal  police  on  board  the  Salvador. 

The  precaution  of  delaying  the  transfer  of  the  prisoners  to  the 
ship  of  war  till  well  out  at  sea,  was  out  of  deference  to  the  sensi- 
bilities of  the  New  Grenadian  Government,  a  matter  with  which 
the  prisoners  have  no  concern. 

The  vital  question  with  them  is,  are  they  guilty  of  the  offense 
charged  against  them ;  not  how  or  where  they  were  arrested  for  its 
commission. 

The  question  recurs,  was  the  enterprise  to  capture  the  Salvador 
one  sanctioned  by  the  usages  of  civilized  war  ? 

In  the  prisoners'  defense,  importance  is  given  to  the  fact  that 
the  purpose  of  capturing  the  Salvador  was  to  transform  and  con- 
vert her  into  a  privateer,  to  cruise  against  the  commerce  of  the 
United  States ;  and  it  is  from  this  argued,  that  inasmuch  as  the 
United  States  have  recognized  and  treated  rebels  taken  on  board 
privateers,  as  prisoners  of  war,  thus  recognizing  the  depredations 
of  rebel  privateers  as  acts  of  lawful  war,  that  it  is  an  act  of  lawful 
war,  by  treachery  and  murder,  to  steal  in  a  neutral  port  a  mer- 
chant vessel  suited  for  the  purpose  of  a  privateer. 

It  is  a  mistake  to  suppose  that  the  use  to  which  the  vessel  pirat- 
ically  captured  was  to  be  devoted,  lessens  the  odium  of  the  crime. 

Whether  the  Salvador  was  to  be  used  to  commit  piracy  against 
the  commerce  of  the  world,  or  only  against  that  of  the  United 
States  is  in  no  aspect  of  the  case,  material,  and  may  be  left  out  of 
view. 

We  may  suppose  then,  that  the  enterprise  was  to  end  with  the 
destruction  of  the  American  merchant-ship  Salvador. 

The  prisoners'  argument  suggests  that  they  intended  to  unfurl 
the  rebel  flag  before  they  rose  in  revolt  on  the  captain  and  crew 
and  commenced  slaying,  and  that  such  were  the  instructions  of 
Mallory.  This  is  a  mistake.  The  rebel  Secretary's  language  is  : 
'"  You  will  proceed  with  the  men  under  your  command  from  Wil- 
mington to  Panama.  At  that  port  you  will  take  passage  on  board 
either  the  Guatemala  or  the  San  Salvador ',  the  two  Federal  screw 
steamers,  trading  between  Panama  and  Realejo." 

"After  reaching  the  high  seas  you  will  consider  upon  and  devise 
a  means  to  capture  the  vessel  in  the  name  of  the  Confederate 
States,  and  effect  the  capture  without  fail.19 


11 

"  Having  secured  the  steamer,  organized  your  crew,  and  hoisted 
the  flag  of  the  Confederate  States,  you  will  adopt  prompt  measures  to 
arm  your  vessel,"  etc.  The  rebel  flag  was  not  to  be  taken  from  its 
secret  hiding  place  till  after  the  vessel  was  captured,  which  was  to 
be  accomplished  without  fail. 

Without  a  flag,  therefore,  this  leader  of  the  band,  Hogg,  and  his 
six  companions  and  followers,  all  in  the  treacherous  and  perfidious 
guise  of  peaceful  travelers,  were  at  a  given  signal,  when  the  master, 
crew,  and  passengers  were  enjoying  a  sense  of  the  most  perfect 
security,  to  commence  the  slaughter — for  the  rebel  Secretary  says 
the  capture  must  be  effected  ivithout  fail. 

It  is  not  clearly  stated  by  the  prisoners'  counsel  whether  they 
claim  to  have  been  engaged  in  a  naval  or  military  enterprise. 

Their  ultimate  intention,  they  say,  was  to  prey  upon  the-  com- 
merce of  the  United  States,  and  that  the  Salvador  was  to  be  trans- 
formed into  a  privateer  for  that  purpose.  It  is  probable,  therefore, 
that  their  claim  accurately  stated,  is,  that  they  are  to  be  regarded 
as  master  and  crew  of  a  privateer,  because  it  was  their  purpose 
and  intention  to  become  such,  if  they  had  succeeded  in  piratically 
stealing  the  vessel,  for  attempting  which,  they  are  now  on  trial. 

And  as  the  spoliations  committed  by  rebel  privateers  are  recog- 
nized as  within  the  rules  of  civilized  warfare,  and  rebels  captured 
composing  the  force  of  such  privateers  are  regarded  as  prisoners  of 
war,  so  the  capture  of  a  vessel  with  intent  to  convert  her  into  a 
privateer,  is  an  act  recognized  by  the  laws  of  war,  and  persons  cap- 
tured in  the  enterprise  are  to  be  treated  as  prisoners  of  war. 

Such  ,a  proposition  cannot  for  a  moment  be  maintained. 

It  is  unfortunately  triie  that  the  leaders  and  chiefs  of  this  rebel- 
lion have  both  justified  and  directed  acts  of  murder  and  robbery, 
for  the  commission  of  which,  the  perpetrators  have,  in  many  in- 
stances atoned  with  their  lives  ;  and  in  many  other  cases,  the  mes- 
sengers of  justice  are  close  on  the  track  of  the  criminals. 

The  leader  of  the  band  of  marauders  which  plundered  the  St. 
Alban's  Bank,  stole  horses,  and  fired  upon  and  murdered  peaceful 
citizens,  justified  his  acts  under  a  rebel  commission,  as  giving  those 
acts  the  character  of  a  legitimate  operation  of  war. 

The  mutineers  on  board  the  Chesapeake  (a  case  in  principle,  on 
all  fours,  with  the  present)  put  forth  the  same  claim,  that  the 
mutiny  was  a  legitimate  belligerent  operation. 


12 

The  rebel  Beale,  already  referred  to,  recently  executed,  set  up 
the  same  claim. 

But  our  Government  does  not  recognize  such  a  doctrine. 

The  contest  is  a  public  war,  and  can  only  be  carried  on  under 
the  recognized  rules  of  warfare,  by  military  or  naval  organization. 
It  cannot  be  carried  on  at  all  times  and  at  all  places  as  a  personal 
strife  between  individuals,  even  though  each  individual  may  have 
secreted  on  his  person  the  commission  or  the  flag  of  the  belligerent 
whom  he  professes  to  serve.  Persons  cannot  be  commissioned  to 
carry  on  war  individually.  They  are  commissioned  as  portions  of 
certain  organized  forces — either  land  or  sea  forces.  There  can  be 
no  such  force  on  the  sea  if  there  is  no  vessel  in  which  it  may  float ; 
nor  on  land  which  belongs  to  a  neutral,  nor  even  on  land  which 
belongs  to  the  other  belligerent,  unless  a  force  sufficient  has  invaded 
the  country  to  enforce  for  the  time  being  a  belligerent  jurisdiction 
over  the  invaded  country.  The  very  idea  of  a  naval  force  involves 
a  ship  or  vessel.  Hence  a  belligerent  may  commission  a  vessel  as 
a  privateer,  but  it  cannot  commission  a  certain  person,  or  number 
of  persons,  to  piratically  steal  a  vessel  for  the  purpose  of  converting 
her  into  a  privateer. 

It  is  submitted,  therefore,  that  the  prisoners,  confessedly  engaged 
in  the  rebellion,  and  claiming  to  belong  to  the  hostile  forces  of  the 
enemy,  in  leaving  the  theater  of  the  war,  and  congregating  clan- 
destinely and  secretly  in  the  neutral  port  of  Panama ;  and  there 
conspiring  to  capture  the  United  States  ship  Salvador,  and  in  pur- 
suance of  such  conspiracy  in  taking  passage  on  the  vessel  as 
ordinary  travelers,  engaged  on  peaceful  enterprises,  in  smuggling 
on  board  arms  and  manacles,  under  pretense  of  their  being  trav- 
elers' ordinary  luggage  ;  in  actually  going  on  board  as  such  pre- 
tended peaceful  passengers  and  travelers ;  in  using  false  names 
and  false  passports,  and  actually  sailing  on  the  voyage,  with  the 
intention,  when  fairly  at  sea,  to  use  their  arms  and  manacles  on  the 
master,  crew,  and  passengers,  and  to  capture  the  steamer  without 
fail  "  in  the  name  of  the  Confederate  Government"  are  guilty  of 
acts  of  treachery  and  perfidy  so  odious  and  revolting  as  to  exclude 
them  from  the  pale  of  honorable  belligerents. 

That  such  acts  are  not  in  accordance  with  the  usages  of  civilized 
war,  and  hence,  that  the  charge  of  "  violation  of  the  law  and  usages 
of  civilized  war,"  is  fully  made  out. 


13 

The  claim  that  their  acts  were  a  stratagem  allowed  by  the  laws 
of  war,  remains  to  be  noticed. 

The  authority  cited  by  the  prisoners  (Halleck,  p.  402)  so  far 
from  supporting  this  claim,  is  in  direct  condemnation  of  it.  The 
author  says :  "  Stratagems  in  war  are  snares  laid  for  an  enemy, 
or  deceptions  practised  on  him,  without  perfidy,  and  consistent  with 
good  faith." 

In  any  case,  in  order  to  justify  stratagem,  the  end  to  be  attained 
must  be  one  that  might  be  lawfully  accomplished  without  stratagem. 
There  is  no  question  of  stratagem  in  this  case.  The  enterprise 
was  one  not  recognized  as  a  lawful  belligerent  act.  It  cannot, 
hence,  be  rendered  lawful  by  being  attempted  in  a  clandestine 
manner.  The  offense  may  be,  and  doubtless  is,  more  odious  by 
reason  of  the  peculiar  perfidy  and  treachery  used,  but  the  cap- 
turing the  vessel  by  these  seven  irresponsible  persons,  far  away 
from  the  theater  of  hostilities,  if  done  ever  so  boldly,  would  not 
have  been  a  legitimate  belligerent  act.  But  it  is  not  stratagem  for 
a  passenger  to  rise  upon  the  unsuspecting  master  of  a  merchant- 
ship,  blow  his  brains  out,  manacle  his  crew,  and  take  possession  of 
the  vessel.  It  is  mutiny,  robbery,  murder. 

"  To*  sail  and  chase  under  false  colors,"  says  Sir  William  Scott, 
"may  be  an  allowable  stratagem  in  war,  but  firing  under  false 
"  colors  is  what  the  maritime  law  does  not  permit." 

What  flag  was  Hogg  to  exhibit  to  the  master  of  the  Salvador, 
before  planting  a  dagger  in  his  back,  or  a  revolver  behind  his  head  ? 

The  boastful  claim  of  the  prisoners  that  they  "  are  commissioned 
and  enrolled  officers  and  sailors  of  a  navy  at  war  with  the  United 
States,  can  scarcely  be  admitted — even  if  we  accord  to  them  the 
positions  conferred  by  the  rebel  Secretary.  They  were  commis- 
sioned to  destroy  property,  not  to  fight  the  enemy,  and  if  by  the 
assertion  that  "  so  long  as  he  had  a  government  to  serve,  he  served 
it  well,  Mr.  Hogg  means  that  he  has  been  engaged  during  this  war 
in  the  infamous  business  of  cruising  for,  capturing,  and  burning 
merchant-ships  of  the  United  States,"  it  was  a  most  unwise  and 
unfortunate  declaration. 

We  have  thus  noticed  such  parts  of  the  matters  set  up  in  de- 
fense, as  are  material  to  a  proper  disposition  of  the  case.  It  is 
not  deemed  proper  to  enter  into  a  discussion  as  to  the  propriety 


14 

of  the  appointment  of  this  commission  to  try  this  offense.  Of  its 
necessity,  the  authority  ordering  it,  is  the  sole  judge,  until  the  case 
is  submitted  for  review  to  still  higher  authority. 

The  demand  for  a  jury  trial  by  these  persons,  and  in  the  same 
breath  claiming  to  be  treated  as  prisoners  of  war,  captured  in 
honorable  warfare,  will  doubtless  receive  all  the  consideration  it 
merits. 

It  would  'be  a  satisfaction  to  have  submitted  this  case  with  a  bare 
statement  of  the  facts  on  which  the  Judge  Advocate  asks,  a  con- 
viction, without  saying  anything  to  wround  the  feelings  of  these  un- 
fortunate men.  But  the  bold  and  defiant  attitude  they  have 
assumed  before  this  Court ;  the  sneers,  and  scorn,  and  affected 
contempt  with  which  they  have  treated  the  gallant  officers  of  our 
navy,  who,  in  the  discharge  of  their  duty,  arrested  them  and  de- 
feated their  scheme ;  their  flaunting  the  rebel  flag  in  the  faces 
of  this  Commission,  with  the  false  boast  that,  "  The  Navy  of  the 
Confederate  States,  though  small,  has  done  its  share  of  the  work 
of  war ;"  that  "  its  cruisers  have  swept  the  ocean ;"  that  "  they 
have  lit  the  battle-fires  in  many  a  sea ;"  the  sneering  taunt 
toward  the  commander  of  the  Lancaster,  that  the  only  place  where 
his  ship  would  be  likely  to  capture  the  rebel  flag,  was  in  the  trunk 
of  a  betrayed  prisoner :  all  these  things  have  excited  feelings  of  in- 
dignation which  we  have  not  been  able  entirely  to  repress. 

Nor  ought  this  indignity  upon  Captain  Davenport,  so  wantonly 
perpetrated  by  the  prisoners,  through  their  counsel,  Mr.  Pixley, 
to  be  passed  without  further  notice. 

Wickedly  and  foolishly,  the  counsel  has  permitted  himself  to  be 
used,  by  the  accused,  as  a  channel  for  a  most  malicious,  wanton, 
deliberate,  open,  and  unprovoked  insult  to  a  gallant  officer,  who  has 
written  his  name  in  his  country's  history,  during  this  rebellion,  in 
characters  too  deeply  engraven  for  the  hand  of  malice  to  erase,  or 
an  advocate  or  eulogist  of  rebellion  and  treason  to  dim. 

"  Perhaps,  although  we  are  prisoners,"  says  Mr.  Pixley,  "  we 
may  congratulate  Henry  Kellock  Davenport,  Esq.,  of  Georgia, 
Commander  of  the  ship  of  war  Lancaster,  carrying  forty-four  guns, 
that  he  met  that  flag  in  the  trunk  of  a  betrayed  prisoner,  rather 
than  flying  at  the  masthead  of  a  Confederate  man-of-war." 

Not   even    the   ordinary  gentlemanly  courtesy  is   accorded   of 


15 

naming  Commander  Davenport  by  his  rank  as  an  officer  in  the 
navy.  But  let  that  pass. 

It  is  due,  however,  to  this  Commission,  and  also  to  this  commu- 
nity, (since  Mr.  Pixley  has  seen  fit  to  furnish  his  speech  for  publi- 
cation) that  it  should  be  known  Captain  Davenport  has,  during  this 
rebellion,  encountered  that  flag  which  the  counsel  has  snatched 
from  his  chivalrous  client's  trunk  to  flaunt  in  the  face  of  this  Court. 

"Henry  Kellock  Davenport,  Esq.,"  as  the  prisoner's  counsel 
discourteously  designates  Commander  Davenport,  wras  executive 
officer  of  the  frigate  Cumberland,  at  the  bombardment  and  capture 
of  forts  Hatteras  and  Clark,  in  the  first  year  of  the  war.  At  the 
battle  of  Roanoke  he  commanded  a  column  of  five  gunboats  under 
Admiral  Goldsborough.  Two  days  after  this  latter  battle,  he  com- 
manded the  same  number  of  gunboats  under  Commodore  Rowan, 
and  fought  in  the  battle  of  Elizabeth  City,  where  the  flag — which 
the  counsel  has  seen  fit  to  eulogize  and  defend — floated  from  the 
masthead  of  the  flag-ship  of  Admiral  Lynch,  commander-in-chief 
of  the  rebel  naval  forces. 

It  would  have  been  much  safer  in  the  trunk  of  even  a  betrayed 
prisoner.  In  that  fight,  fifteen  minutes  after  the  signal  for  attack 
was  given,  our  fleet  had  captured,  burnt,  or  destroyed  the  entire 
rebel  force  in  the  Sounds  of  North  Carolina ;  and  the  gallant 
Lynch,  whom  I  commend  to  the  counsel  as  a  fit  subject  for  his  next 
eulogy  of  rebel  heroes  and  exploits,  running  away  from  his  shore 
batteries,  left  his  cloak  in  the  hands  of  the  enemy.  On  that  occa- 
sion, "  Henry  Kellock  Davenport,  Esq.,  of  Georgia,"  had  the  honor, 
also,  of  extending  the  hospitalities  of  his  ship  to  Admiral  Lynch's 
flag  Captain,  as  a  prisoner  of  war,  but  the  flag  Captain  did  not 
bring  the  flag,  which  he  came  to  surrender,  in  his  trunk. 

Commander  Davenport  subsequently  participated  in  the  battle 
and  capture  of  Newbern,  North  Carolina,  and,  for  two  years  after- 
ward, was  senior  officer  in  the  Sounds  of  North  Carolina,  where  he 
relieved  Commodore  Rowan,  taking  part  in  the  battles  of  Newbern, 
when  the  enemy's  fleet,  in  conjunction  with  a  land  force,  several 
times  attempted  to  retake  the  town. 

The  following  letter  from  the  Commander  of  the  brave  little  band 
of  soldiers  to  Commander  Davenport,  is  somewhat  in  contrast  with 
the  language  in  which  Mr.  Pixley  has  seen  fit  to  indulge  : 


16 

HEADQ.  IST  BRIGADE,  WESSEL'S  DIVISION, 
Newbern,  N.  C.,  March  15th,  1863. 

Commodore: — When,  on  the  14th  of  March,  1863,  General  Pettigrew,  with 
eighteen  pieces  of  artillery,  and  more  than  three  thousand  men,  made  his  furious 
assault  upon  Fort  Anderson,  an  unfinished  earthwork,  garrisoned  by  three  hundred 
men  of  my  command,  (the  Ninety-Second  New  York  Volunteers)  the  capture  or 
destruction  of  the  brave  little  band  seemed  inevitable.  But  the  gunboats  under 
your  command,  the  pride  of  loyal  men,  and  the  terror  of  traitors,  came  promptly 
to  the  rescue 

Your  well-directed  fire  drove  the  enemy  from  the  field,  covered  the  landing  of 
the  Eighty-Fifth  New  York,  sent  to  the  relief  of  the  garrison,  and  the  repulse^f  the 
rebel  army  was  complete. 

Allow  me,  Commodore,  in  the  name  of  the  officers  and  members  of  my  com- 
mand, to  express  my  admiration  of  the  promptitude  and  skill -displayed  by  your 
command  on  the  occasion.     The  army  is  proud  of  the  navy. 
I  remain  your  most  obedient  servant, 

J.  C.  BELKNAP, 
Colonel  85th  Yew  York  Vol's  Com'g  1st  Brigade. 

Commander  DAVENPORT,  Newbern,  N.  C. 

And  here  is  also  an  extract  from  the  report  of  a  gentleman  whom 
Mr.  Pixley  would  probably  designate  as  S.  P.  Lee,  Esq.,  known  to 
history  and  fame,  however,  as  Admiral  Lee,  on  the  conduct  of 
the  Commander  of  the  gunboat  Hetzel,  Henry  Kellock  Davenport: 

"  Commander  Murray  states  that  the  fire  of  the  Hetzel,  Commander  Davenport, 
was  very  accurate,  and  that  after  three  discharges  from  her  9-inch  gun,  the  enemy's 
battery  was  silenced,  and  that  one  of  the  Hetzel's  shells  dismounted  and  broke  a  rifle 
Parrott  gun  and  killed  and  wounded  a  number  of  the  enemy.  Commander  Mur- 
ray thinks  that  one  of  the  9-inch  shells  from  the  Hetzel,  was  probably  one  of  the  mos* 
destructive  projectiles  thrown  during  this  war  from  either  side.  Two  hundred  and 
fifty-seven  projectiles  were  expended,  of  which  fifty-four  were  9-inch  shells,  fired 
from  the  Hetzel." 

But  Commander  Davenport  is  not  on  trial,  nor  does  he  even  ap- 
pear as  a  prosecutor,  though  the  counsel  seems  determined  to 
make  him  a  party  to  the  proceedings,  and  drag  him  into  the  same 
pillory  where  he  has  placed  himself.  He  comes  in  obedience  to 
orders  from  the  Government  he  serves,  simply  to  testify  as  to  the 
manner  in  which  he  carried  out  the  instructions  he  received. 

It  may  have  been  a  crime  to  capture  a  rebel  flag  in  a  betrayed 
prisoner's  trunk,  but  I  imagine  that,  in  this  instance,  sympathy  will 
scarcely  side  with  that  betrayed  prisoner.  Public  opinion  will 
probably  exhonorate  him  of  any  very  grave  ofiense  in  not  patiently 
waiting  for  that  flag  to  fly  above  the  corpses  of  the  officers,  crew, 


17 

and  passengers  of  a  peaceful  merchant-vessel,  captured  by  mutiny 
and  stealth,  and  suddenly  baptized,  in  loyal  blood,  into  a  "  Confed- 
erate man-of-war." 

I  hope  the  Commission  will  pardon  this  brief  notice  of  Com- 
mander Davenport.  It  has  seemed  to  me  due  to  the  case  and 
to  the  occasion. 

I  now  return  to  the  prisoners'  argument. 

That  rebel  freebooters  have  swept  the  ocean  is  true;  but  that 
they  have  "  lit  the  battle  fires  in  many  a  sea,."  we  first  learn  from 
these  prisoners. 

It  is  also  true  that  they  "  have  illumined  the  darkness  of  night  and 
storm,  with  many  a  burning  wreck  ;"  but  the  illumination  has  been 
caused  by  incendiary  torch,  applied  by  traitor  hands,  to  defenceless 
merchant-ships.  If  it  be  true,  as  alleged  by  the  prisoners,  that  in 
this  boasted  naval  warfare  of  the  rebel  cruisers,  avoiding  the  enemy 
and  burning  merchant-ships — "  no  one  has  walked  the  plank,  or 
swung  at  the  yard-arm,"  it  is  indeed  a  just  subject  of  congratula- 
tion— for  it  is  believed  there  are  no  other  acts  of  infamy  pertain- 
ing to  the  character  of  pirates,  from  which  they  are  exempt.  For 
the  prisoners  to  bring  these  matters  prominently  and  defiantly  be- 
fore this  Commission  and  this  community,  at  this  time,  is  not 
calculated  either  to  establish  their  innocence,  or  mitigate  their 
punishment. 


